US v. Fincher: no 2A right to own an NFA in a private militia

Posted by David Hardy · 16 August 2008 10:25 AM

The 8th Circuit has so ruled. (pdf). The ruling essentially says that a well organized militia must be a State organized militia (and the State law recognized non-Guardsmen only as the "unorganized militia") hence his possession of the NFA firearms was not related to service in a well organized militia.

I can't see how this analysis can be squared with Heller, where Heller was not a member even of DC's unorganized militia (he was over the age limit) and DC didn't want him to have the firearm in question.

The court does turn to Heller -- without noting that its preliminary point is contra to Heller's holding -- and holds that machine guns are not in common use.

The ruling also sustains a trial court order that forbade his counsel to argue the 2A issue to the jury. This would be in accord with case law over the last century or so, but not in accord with the practice at the time of the framing. For my money, it just makes trials more boring. Patrick Henry would be serving a million years for contempt these days. (A side issue: many courts require counsel to stand at the podium, 30 ft or so from the jury, while arguing. This again makes things rather impersonal and thus boring. I think it's a matter of control -- don't want attorneys to have too much influence -- and a feeling that if everything is mediocre and contained, things will be fairer, since an attorney who cannot speak worth a dang will not be disadvantaged. Goodbye Patrick Henry, and goodbye interesting trials).

"Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as 'the people.'

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

And...

"United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

DC v. Heller

At the risk of sounding like a one-note-Charley at this blog, I remind all of the Article 1 Section 8 of the Constitution which defines the missions of the militia. Full auto weapons are precisely those needed to perform the militia's responsibilities under Article 1 Section 8. A militia which is unable to perform it's Constitutionally defined missions cannot be said to be "well-organized." Nor can the Feds or the States dis-establish the militia short of amending the Constitution since by virtue of the 2nd Amendment it is "necessary for ... security."

When I did Mock Trial in high school, our attorney coach always told us to ask permission to step away from the podium. I'd ooze politeness when I asked as the first representative on my team delivering opening. I only had one judge who asked me to remain at the podium.

It's amazing what a difference it made when I could stand between between the other team's table and the jury. I could command their complete attention.

Of course, I was also warned by a female attorney that some judges still hated women wearing pant suits, and they were so hateful about it they would take it out against me as a student participating in a game. But it was Oklahoma. :)

The relevance of this defendant's lack of membership in the statutory militia *might* derive from a statute exempting military and police from the NFA restrictions. The defendant has no 2nd Am defense under Heller for possessing an NFA weapon. But if the guy could prove he was a recognized militiaman by statute, he might have had a statutory, not a constitutional, defense. Just guessing.

This harks back to the error made in Haney by the 10th Circuit, not understanding the correct meaning of the term "well regulated". In educated writings of the period it CLEARLY did NOT mean "strictly controlled by the government".

Period writings include references to well regulated gentlemen, well regulated minds, a well regulated drawing room, well regulated hair, a well regulated head, well regulated horses, well regulated hair and well regulated music.

If you're a 21st century jurist, the clear meaning just has to be "state regulated" because, after all, the state is the source of regulations. Unfortunately, this view of the term is not supported by fact, and wasn't at all what the term meant circa 1800.

In the Heller decision, Scalia specifically rejected the "state regulated" interpretation of the term. See p25.

Machine guns are not in common use? (Circular argument can be challenged on constitutionality).

But what about "future weapons" when the machineguns become obselete?

What about the taboo constitutional norm that the Second Amendment was supposed to provide the right to arms equal to that of the standing army as part of the checks and balance system of the quarantee of a Republican form of government in conjunction with the taboo constitutional norm of the right to openly keep and bear arms in society, even in intrastate, interstate, and maritime travel?

The American people today and for quite some time, are nothing more than sitting ducks in the common criminal and the criminal element of local, State and Federal governments.

"As a result of alcohol prohibition, the United States in the 1920s and early 1930s did have a problem with criminal abuse of machine guns, a fad among the organized crime gangsters who earned lucrative incomes supplying bootleg alcohol, although most such firearms were owned by peaceable citizens. The repeal of Prohibition in 1933 had sent the American murder rate into a nosedive, but in 1934 Congress went ahead and enacted the National Firearms Act anyway." Joseph E. Olson and David B. Kopel, ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA, 22 Hamline L. Rev. 399 at 414 (1999).

The NFA 1934 enactment is technically a fraud. Can fraudulent enactments of law be challenged for constitutionality?

IIRC, the NFA 1934 imposed a $200 tax for registration. In 1934 a $200 tax was a small fortune for the average American. I think the new price of a Thompson full-auto carbine at that time was around one-sixth of the tax amount. The tax amounted to an outright prohibition for the vast majority of Americans. Imagine a gun having a tax of 600%.

There are two better grounds for questioning constitutionality than claiming fraud. One, having any tax on a constitutionally enumerated right, and two, legislation that creates two classes of people - those who get to exercise their rights and those denied. Both considerations are still in play for any future litigation, especially since 1986.

Hopefully the "baby steps" planned and currently underway for regaining violated Second Amendment rights will be pursued. That way those in the legal community will have ample time to more fully absorb our history and heritage and not peremtorily deny clear evidence of unconstitutionality as the courts have until very recently.

Risking ignorance with this question is the John Ross' "Prohibition's Ugly Legacy" (March 12, 1974) from his fictional novel, "Unintended Consequences" an accademicly factual piece on the legislative history to the National Firearms Act of 1934?

If John Ross' "Prohibition's Ugly Legacy" comparing the NFA to the Stamp Act is factual and not literary fiction then Footnote 9 to that paper stating:

"On March 22, 1765, Parliament levied a tax on the Colonists' newspapers and legal and commercial documents, all of which had to carry a special stamp. The Colonists formed the first intercolonial Congress which met in October of that year to declare American rights and grievances, specifically concerning the Stamp Act. Parliament rescinded the Stamp Act in March of 1766, but coupled this recission with passage of the Declaratory Act, claiming England's supremacy over America "in all cases whatsoever". The Colonists rights and their insistence on maintaining them became the basis for the American Revolution."

then the tax from NFA 1934 on the Second Amendment can be compared to the Stamp Act tax on the First Amendment right to a free press would have the same cause and effect to a modern day revolt as did the Stamp Act.

Today I received an email from John Ross himself. The "Prohibition's Ugly Legacy" is a factual account of the NFA 1934. I will use it in my forthcoming lawsuit for the Second Amendment against the United States.

"Machine guns are not in common use? (Circular argument can be challenged on constitutionality)."

The argument that "machine guns are not in common use" is fallacious for 2 reasons. First, it is indeed a circular argument, as they were so effectively put beyond the range of affordability for the average person by the '34 NFA (almost at the outset of commercial availability to the public) that they never could get into "common use" in public hands. Further, the '86 ban on the registration of new machine guns forever limited the amount of machine guns in public hands to something on the order of 150,000 to 200,000. As the population grows and this number stays static, these guns become less common in public hands. I simply cannot believe that the Court would be so obtuse as to buy into this argument.

But let's take a larger viewpoint. The purpose of the militia is to repel invasions and put down domestic insurrections. As another poster mentioned, this mission is impossible unless the militia is armed with comparable weapons (at least infantry weapons) to its potential foes. Can anyone here name a foreign army, let alone one that could conceivably be landed on our soil, that has an infantry that ISN'T armed with machine guns? Also, what domestic insurrection could possibly be successful without a significant portion of our armed forces (where the infantry IS armed with machine guns) partaking? My point is that the term "common use" MUST take into account potential foes of the militia - in which case machine guns most definitely ARE in common use.

"But what about "future weapons" when the machineguns become obselete?"

The "Heller" decision specifically addressed the argument put forth by some of the anti-gun folks that the 2nd Amendment merely protected 18th century muskets and, perhaps, Kentucky rifles. The Court dismissed this argument very easily, stating (correctly, IMHO) that the 1st Amendment most certainly protected communications by methods not invented (or even imagined) in 1791, and the 4th protected against searches by methods not invented (or even imagined) in 1791. Thus, the 2nd also protected the right to arms not invented (or even imagined) in 1791. OK, fine - but now these same anti-gun forces (including some clearly anti-gun federal judges), having been slapped down on halting firearms technology as of 1791, wish to do so as of 1986 (or, in many cases, prior to the invention of machine guns sometime in the 19th century). By their logic, if a firearm wasn't invented or widely adopted as of right now, we can never be afforded protection by the 2nd to own it. So, I imagine, when some evil empire of 200 or 500 years from now invades the US, armed with phasors, we of the militia will have to fight them with semi-autos.

I expect that this Court will, ultimately, toss aside that argument. Technology of any sort, whether it relates to expressing ideas, searching a particular set of coordinates in space, or firearms, is a constantly moving target. Advances never stop (though they may slow), and that which is invented cannot be uninvented.

In order to get judges under control, I have been advocating the following signage to be placed in all courtrooms:

"The People's Courtroom ###
Judge So-and-so, Caretaker"

It is NOT the judge's courtroom. It the People's courtroom.

Next, militia, as a term cannot be defined by government. Government is authorized to organize the pre-existing object, the militia. To allow government to define the term militia is to allow government to define each and every word in the constitution, making the constitution moot. The militia was in exitence BEFORE government.

I keep hearing claims that government, the subordinate of the constitution, which is itself subordinate to the People, can decide what Arms the People can have yet I can find no such authorization in the Constitution (at least for the feds). Claims made by judges and lawyers not withstanding are usually based on historical governments which are not under the same constraints of the federal government. There ain't no good intentions clause in the Constitution. There ain't no compelling governmental interest in the Constitution. There are EXTREMELY limited powers delegated in the Constitution and by studying those powers carefully one can only conclude logically that there are no implied powers, except in the imaginations of judges and other persons intent on stealing power from the People.

Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms. Heller p. 54

This has a footnote, 26, which states:

We identify these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.

Don't forget footnote 23 as well!

23 With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.

You were lied to by large special interests (e.g., The Cato Institute).